Prof: Susan Boyd Fall 2011

FAMILY LAW CAN

Prof: Susan Boyd – Fall 2011

DEFINITIONS

Law responds to changes in the way we think about family and relationships & vv. Reciprocal relationship

FAMILY

Persistent idea that the family is a core institution in society that must be protected – private, separate from public
Notion of the family as a private institution that ought to be protected from state interference
Traditionally defined according to a hetero-normative model, with 3 key aspects
1. Nuclear (two adults; monogamous; heterosexual; married, dependent children)
2. Biological or sexual division of labor
3. Family as a private haven

Statistics Canada: A family is a now married couple or CL couple living either with or without children of at least one of them, or a lone parent with at least one child living in the same dwelling. Couple may be same-sex or opposite sex. Children may be by birth, marriage or adoption regardless of their age or marital status as long as they live in the dwelling and do not have their own spouse or child living in the dwelling.

This def does not really capture intergenerational ties. Adult children may take care of parents; siblings may take care of one another with no parents; a child may have the same relationship with parents after having own child

We have started to move towards a FUNCTIONAL rather than FORM-BASED model. (Mandell/Duffy)

Protecting CL couples like married couples
Same-sex couples now get same custody, support and access orders that opposite-sex couples get
But extended family acting as parents do not get family financial support from state

TRENDS:

Proportion of traditional families (married or CL with children under 24 living at home) decline, while families with no children at home increasing
Increasing # of adults (20-29) living in the parental home
Decreasing # of couples are married, while increasing # of couples are common law
16% of all families are lone-parent families, with 80% headed by women
massive decrease in # sole-custody awards to women, with only slight increase to menmore JC awards
19% of all children do not live with both parents
Low-income families are disproportionately lone-parent families
7% of children are being raised by an extended family member – no financial benefits from the state

SPOUSE

BC FRA s 1(1): a person who

Is married to another person
Lived with another person in a marriage-like relationship for a period of at least 2 years if the application under FRA made within 1 year of ceasing to live together, can be of same gender [CL couples not included in MP division!]
Applies for an order under FRA within 2 years of the making of an order
For dissolution of the person’s marriage (still considered ‘spouse’ for 2 years after divorce for purposes of applying for support, etc)
For judicial separation, or
Declaring the person’s marriage to be null and void [*spouse although was not valid!*]

DA s 2: either of two persons who are married to each other.

Must apply for divorce to invoke the DA

Convention on the Rights of the Child (1990)

Right not to be separated from parents unless in child’s best interests
Best interests must be primary consideration when state authorities make decisions about children
Children must be given opportunity to make views know if parents are separated

Growing trend for lawyers to invoke laws in international treaties – Binding? Incorporated?

JURISDICTION

FEDERAL S 91 CA, 1867 / PROVINCIAL S 92 CA, 1867
(26) MARRIAGE AND DIVORCE
Essential elements of marriage–capacity, age, consent.

Marriage (Prohibited Degrees) Act
Civil Marriage Act

Divorce & corollary issues (custody, CS, SS)

Divorce Act – Married couples only, andmust have filed for a divorce.
Not matrimonial property division! (use FRA)
(Married couples can deal with everything under FRAand never file for a divorce.)
Once you have applied for a divorce, can useDA. May still go to FRA for some procedural remedies such as restraining orders.

(27) CRIMINAL LAW
Assault, homicide, necessities of life, corporal punishmt

Criminal Code

(29) ANYTHING NOT IN PROVINCIAL HANDS
Fed power = overriding but must take the field / (12) SOLEMNIZATION OF MARRIAGE
Formalities of marriage – issuing of license, qualifics of person performing ceremony, reqs relating to witnesses and reqs of parental consent

Marriage Act (BC)

(13) PROPERTY & CIVIL RIGHTS

FRA –div of property for married couples only;

CL/married: CS, SS, custody & access

Child Support Guidelines
Adoption Act
CFCSA – child welfare
Law & Equity Act – legitimacy
Vital Statistics Act – parenthood, naming
Estate Administration Act: succession

(16) GENERALLY ALL MATTERS OF A MERELY LOCAL OR PRIVATE NATURE IN THE PROVINCE
S. 88 INDIAN ACT (N.B. federal statute)
cannot divide MP as per FRA that is on reserve b/c Indian Act applies. But FRA can still be used for movable property on reserve.
The CL recognizes the validity of aboriginal customary law in the fields of adoption (Casimel) and marriage (Connolly v Woolrich)
CDN CHARTER OF RIGHTS & FREEDOMS

Causing gov to amend leg to ensure it is Charter-compliant (e.g. both men + women can apply for SS)
Direct const challenges to stat provisions (sex equality s 15, child protection s 7, freedom of religion re decision-making for kids s 2) – cts have flatly rejected on grounds that Ch cannot be invoked in priv matters. “BIOC” doctrine prevails.
Arg that even in absence of gov action, JJs must take account of fundamental Charter values (e.g. Moge case on SS - equality rights s 15)

**must apply for Divorce to invoke DA(married couple may do everything under FRA & never get divorced)

Paramountcy Doctrine

Where there are inconsistent federal and provincial orders, the federal order prevails.
*Note: Conflicting support orders aren’t tech inconsistent b/c both could be paid, but treated as inconsistent.
When divorce granted but no order for corollary relief granted under DA, provincial order for relief prob valid (applying the “express contradiction” test).
An order made under provincial law can be varied by a subsequent order under the DA(Gillespie).
A province has no jurisdiction to vary an order for the custody of a child made under the DAin a different province (Re Hall and Hall; cf Ramsay obiter)

Where to Commence Action

BCSC

Divorce Act s. 2(1) “court

Property matters – FRA part 5 & 6 ss 5, 6

Adoption Acts 1 ”court”, s 29

FRA s 5(3): (sole) inherent jurisdiction to act in parens patriae capacity respecting a child before the court.

FRA s 5: BCSC continues to have jurisdiction in all matters concerning he custody of, access to and guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and maintenance.

Concurrent jurisdiction btw Provincial Court and BCSC

Matters under FRA (except property matters)ss 5, 6

Custody, access & guardianship of children
Child Support
Spousal Support
Parentage of a child
Occupancy o fthe family residence and the use of its contents
Making of orders that a person must not enter premises while they are occupied by a spouse, parent or child

Provincial Court

Sole jurisdiction in matters of child protectionCFCSA s 1 “court” but appeals to BCSC

[No jurisdiction for divorce apps or claims for division of matrimonial property]

COHABITATIONAND MARRIAGE

Private law – contract, property

Autonomy, similar to business approach, freedom to negotiate own terms
Traditional approach – dowry
Works well if the parties are relatively equal, relatively wealthy, standard relationship
 Pretty unrealistic option for most people, need a lawyer.
 Changes over time… can’t predict changes between start and end of relationship

2. Ascription

Ascribing spousal status to couples who have not formally contracted as spouses
FRA s 1: “spouse” if (b) lived together in a marriage-like relationship for at least 2 years
 Protection from exploitation
 Inclusive
 Don’t have to take active steps
 No choice / infringes on autonomy (but can try to opt out through contract)
 Inclusive only if relationship follows the form in the statute

3. Registration

Registration of an unmarried relationship
E.g. Civil Partnership system in England, parallel to marriage system – same sex only
QB, NS, AB, MA
 Autonomy / equality / no uncertainty
 Broader recognition of various types of relationships (e.g. AB recognizes sibling relationships)
 But ascription should still be used when there is evidence of exploitation

4. Marriage

History of Marriage

Marriage was originally a private customary contract (Roman law)
Rise of Christian church turned it into a religious institution (opposite sex, monogamous, for life)
Now returning to its secular roots.
Canada: both church and state have authority to solemnize marriage for legal recognition.

While marriage used to mean that the wife’s legal personality was subsumed into that of her husband, the

Law & Equity Act s 60is a remedial provision changing the CL rules on consequences of marriage (1985 to encapsulate equality provisions in Charter):

Married man and wife have legal personalities separate from each other
Various consequences of this:
Each of the parties to a marriage has the same right of action in tort against the other as if they were not married
Married woman can acquire domicile separate from her husband, etc.

Definition:

CL def: “voluntary union for life of one man and one woman, to the exclusion of all others” (Hyde v Hyde, 1866)

Civil Marriage Act s 2: “lawful union of two persons to the exclusion of all others”

Effects of legal marriage v cohabitation

Fed:Modernization of Benefits & Obligations Act('00): extends almost all marriage benefits in fed statutes to CL couples.

Prov: Matrimonial property (Walsh v. Nova Scotia, SCC, 2002): provinces can treat CL couples differently with regards to post-separation property distribution.

Annulment / Decree of Nullity

While divorce pre-supposes a valid marriage, is based on a post-nuptial event, and dissolves the marriage ex nunc (from the date of the decree), a marriage is a nullity / there never was a marriageif some defect prevented the marriage from coming into existence. Could be:

Void ab initio = void  decree of nullity declares that there never was a marriage. Fewer obligations.
Voidable marriage stands until annulled by some positive action (ie if H dies before marriage annulled, wife would still stand to inherit)

TODAY, annulment does not have such far-reaching effects:

FRA s 1: “spouse” includes sb who applies for an order under the Act within 2 years of an order declaring their marriage null & void
FRA s 56: parties can have an interest in family assets even if their marriage is annulled
 more rights than CL couples

How do you contract a legal marriage? – 4 general requirements

1. Capacity (generally void, except in some age cases)

Age
Old CL age of consent = 14 for males, 12 for females. Marriages for parties under 7 = void (over 7 = voidable)
If married too young and live together until old CL age of consent, could eventually be viewed as ratified
BC Marriage Actappears to have overwritten the CL (but note point above about ratification)
S 28 – marriage under 19 requires parental consent
S 29 –marriage under 16 requires a court order
S 30 –No parental consent / no court order does not invalidate a marriage (i.e. not void)
Consanguinity(blood) & affinity(family) Marriage (Prohibited Degrees) Act – 1990 federal
Narrowed prohibitions – now only not allowed to marry real, half, or adopted brothers or sisters. (step ok)
Single (void) Civil Marriage Act - federal
makes it clear only allowed 1 spouse (“lawful union of 2 persons to the exclusion of all others”)
Complicated by fact that some countries permit more than one spouse. Canada will not recognize those marriages, but will allow those couples to divorce
DA, s 22 – will recognize a foreign divorce if either spouse was ordinarily resident in that country for at least 1 year immediately prior to the commencement of the divorce proceedings
Criminal Code s 290 – polygamy is an indictable offense.
Formerly, req of opposite sex – but Civil Marriage Act 2005 same sex marriage okay.
Civil Marriage Act, s 2: “lawful union of two persons”
Ref re Same Sex Marriage – new definition of marriage consistent with the Charter
Sanity
Test: Whether the parties are able to understand the nature of the marriage contract.

2. Consent (void) (possibly voidable)

Duress vitiates consent
if entered marriage with belief that if they didn’t, their life, health or liberty would be threatened. Cout can consider (1) age; (2) emotional state (3) vulnerability (4) length of time btw duress & marriage, (5) whether marriage consummated.
Mistake or fraud vitiates consent – mistaken as to who they married (ie identical twin) or what they are doing
Lies about status, name, age, and wealth have not been treated as grounds for annulment

3. Formalities (void)(provincial domain – meet formalities of where you get married) – Marriage Act (BC) ss 20, 28, 29, 30

S 20 – may be solemnized by marriage commissioner on payment of prescribed fee if contracted in public manner with 2 or more witnesses; requirements of declarations the parties must make.
Ss 28 – 29 parental consent / court order if too young before allowed to solemnize
Exception: Aboriginal customary marriage

4. Consummation (voidable)

2-Part Test: (1) Practical impossibility of consummation, whether physical or psychological; (2) If for psychological reasons, have to show invincible aversion or repugnance to the act of consummation

Aboriginal Customary Marriage

Connolly v Woolrich (1867): Cdn law accepts validity of Aboriginal marriage by custom where (1) validity in the community (2) voluntariness (3) exclusivity and (4) permanence
Provincial powers of formalities in Marriage Act technically prevent recognition of customary marriage as a marriage won’t be registered.
But Casimel[1993] BCCA lays the groundwork for recognition of customary marriages as a s 35 right. [Ratio: If indigenous customs were properly adhered to in marriage between white man & aboriginal woman, valid marriage.]

*People of the Doukhobor religion do to go through all the same formalities as others. (BC Marriage Act, s 12)

Note: General presumption in favour of marriage (e.g. Marriage Act (BC) ss 11, 18, 30 – solemnized by religious rep not auth’s to solemnize marriage an in ignorance of the Act; irregularity in issue of marriage license; no consent/order when under-age

SAME SEX MARRIAGE & RELIGIOUS FREEDOMS

Civil Marriage Act, 2005

S 2: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”

S 3: religious officials may refuse to perform marriages that are not in accordance with their religious beliefs.

(even though it is provs that have jurisdiction over solemnization, fed gov put this in)

Reference Re Same Sex Marriage

Issue: Is it constitutional for marriage to be defined as the lawful union of 2 people to the exclusion of all others?

Holding: New definition of marriage was consistent with the Charter.

Religious officials could not be compelled to perform a marriage if contrary to religious beliefs.
Equality must be balanced with religious freedom
Ultimately contained with the legislation.
Obviously, the solemnization of marriage was within provincial power.

Smith v. Knights of Columbus 2005 (BC Human Rights Tribunal)

2 lesbians wanted marriage ceremony in a hall owned by a Catholic men’s group that did not allow it once they discovered it was a lesbian wedding.

Held: Permissible for Knights to discriminate b/c of protection of core religious beliefs. Religious protection also extended to buildings owned by the church.

Refusing access was okay - but because Knights caused undue hardship and affronted complainants' dignity & self-respect, they had to pay damages for deposit & invitations

Note: Decision reinforces Reference on Same-Sex Marriage that it is permissible for a person not to assist a same-sex marriage if it is contrary to religious beliefs.

Legal Parenthood

Different legal models of parenthood

Biological Presumption ("natural parents")
Social model

Note disjuncture b/t biological parents and genetic parents (i.e. surrogate vs female egg donor)
The law imposes legal parenthood to subject the person to rights and responsibilities.
The law might look to social parents to force someone else to pay child support than the state.

Caregiving: who does the most caregiving?
Gestational mom & Genetic mom: mom bears child (gestational), but egg comes from donor (genetic)

Intention has emerged as part of legal parenthood formula when there are sitns of conflict.(Johnston-Steeves, AB; GES, Sk)

LEGISLATIVE DEFINITIONS OF PARENTHOOD

Canadian law is committed to a biological model of parenthood, based on assumptions around biology, marriage and cohabitation. This is challenged today in the modern era. [The law is in a state of flux. Not a lot of legislative guidance, and not really reflective of reality]

Law & Equity Act s 61(1)(b):A person is the child of his/her natural parents.  Abolished illegitimacy distinction between born in and out of marriage, showing we now emphasize GENETICS over MARRIAGE.

FRAdoes not define motherhood, though presumption is that person who gives birth is the legal mom

VSA s 1defines “birth” as “complete expulsion or extraction from its mother” – presumption is that the woman who gives birth is the child’s legal mother

Adoption Act s 13refers to fathers as biological fathers. But the Act also states that fathers are men who acknowledge paternity in some way. (for the purposes of giving consent for adoption)
Parenthood (fatherhood)is defined in Part 7 (FRA, ss.94-95) for the purposes of child support.

s.94: if parentage is denied, the court can determine issue of parentage by applying s.95

s.95(1): presumptions of paternity re male parenthood
If a man denies legal parentage in order to avoid child support responsibility, then the court must determine whether he is a father of the child
If the man meets one of the s.95presumptions, the Court may presume that he is the biological father, unless he proves to the contrary on BOP. Same rules apply to CL couples.

(a)Man was married to the child's mom at the time of birth

(b) Man was married to the child's mom, and marriage was terminated (i) by death of the man or by nullity within 300 days before the birth, or (ii) by divorce if decree took effect w/in 300 days before birth of child

(c)man married the child's mom after the birth and acknowledges that he is the natural father

(d)man cohabitated with the child's mom in a relationship of some permanence at the time of the birth, or the child was born w/in 300 days after the man & mom ceased to cohabit